Citation Nr: 21011519 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-53 560 DATE: March 2, 2021 REMANDED The claim of entitlement to a disability rating in excess of 30 percent for post-total knee replacement of the right knee is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the United States Air Force from November 1975 to June 1979. In an August 2019 decision, the Board denied the claim of entitlement to a rating in excess of 30 percent for post-total knee replacement of the right knee. In September 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR). In the JMPR, the parties agreed to vacate the part of the Board’s August 2019 decision that denied entitlement to a rating in excess of 30 percent for post-total knee replacement of the right knee. The JMPR was incorporated by reference in a Court order dated September 2020. The claim of entitlement to a rating in excess of 30 percent for post-total knee replacement of the right knee is remanded. In the JMPR, the parties agreed that the Board failed to obtain an examination that complied with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, a remand is required to obtain another VA examination. In addition, the JMPR also mentioned that the August 2019 Board decision did not include a discussion of whether a separate rating was warranted under diagnostic code 5257, for instability. On remand, the examination should address the Veteran’s claimed right knee instability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. Relevant to this case, significant changes were made to Diagnostic Codes 5055 and 5257. Changes to the rating criteria include Note (1) for Diagnostic Code 5055, which indicates that when a disability rating is assigned under Diagnostic Code 5055, an additional rating under 38 C.F.R. § 4.71a may not be assigned for that joint unless otherwise directed. This change affects the Veteran’s claim for a separate rating for right knee instability under Diagnostic Code 5257. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, on remand, the examiner must provide information required to rate the Veteran’s service-connected right knee disorder under the old and revised rating criteria. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If the AOJ deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected post-total knee replacement of the right knee. All pertinent evidence of record should be made available to and reviewed by the examiner. All necessary studies should be performed. The AOJ should ensure that the examiner provides all information required for rating purposes, under both the old and revised rating criteria. The examiner must specifically include the results of range of motion testing for pain on both active and passive motion, as well as on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s right knee conducted during the course of the appeal. If the examiner is unable to do so, he or she should explain why. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. The examiner must also determine whether there is any evidence of recurrent subluxation or lateral instability of the right knee, and if so, to what extent. 3. Then, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.